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“Just cause and good provocation” convinced Reuben Ward of Howard County, Missouri, that he and his wife should “tear” themselves “asunder.” In a whimsical notice in the Missouri Intelligencer, June 19, 1824, he advised her to get a divorce: “when you readest this suppress thy sobs, sue out a divorce, and set thy cap for another and a more happy swain, while I roam through the world sipping honey from the bitter or sweet flowers that chance may strew in my path.” With this lighthearted farewell, Ward joined thousands of others who left their homes and spouses behind them.
Ward’s attitude was far from unusual in the nineteenth-century American West, a region widely known for its dedication to individualism, breaking ties, and reshaping institutions. Although settlers carried established ideas and institutions westward, most refused to be bound by them. Instead, they revised customary procedures whenever it suited their purposes. In addition, western settlers frequently acted in haste. Because they were anxious to establish government and other institutions, westerners often skipped time-consuming deliberations. Haste set the state for the adoption of permissive divorce statutes and short residency requirements on more than one occasion.
Western states including Utah soon gained notoriety for their broadminded or, as some said, decadent divorce laws. The West was widely known for divorce laws that were, according to an 1867 observer, “very liberal; seldom compelling men or women to remain in marriage bonds which they wish severed.”
The American West seemed to provide a hothouse environment for the institution of divorce. Here, the divorce rate rose faster than in northeastern or southern states. Even if migratory divorces were subtracted from total divorces, the West’s divorce rate considerably exceeded those of the Northeast and South. in addition, one town after another gained a national, and sometimes international, reputation as a divorce mill during the latter part of the nineteenth century. Gradually, lenient western divorce laws and colorful western divorce mills helped convince many Americans that the time had come to regularize and control divorce in the entire United States.
Divorce and Desertion
In 1908, Commissioner of Labor Carroll D. Wright reported that “the divorce rate increases as one goes westward.” Wright and the staff of the Census Bureau collected statistics beginning with the year 1867 that revealed the ratio of divorces to population increased faster in western states than in any other region of the United States.
The growth of divorce in the West is even more striking when rates in the western division are combined with those in the southcentral and north-central divisions–the two next highest divisions. The western division, which encompassed Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming, can be united with the south-central and northcentral because these divisions also included a number of states and territories generally thought of as western in culture and outlook during most of the nineteenth century. The south-central included Indian Territory, Oklahoma Territory, and Texas, while the northcentral was composed of Indiana, Illinois, Iowa, Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin.
Undoubtedly, some Americans interpreted high rates of divorce in these states and territories as a temporary development resulting from stresses of migration and settlement. But Commissioner Wright pointed out that the upwardly spiraling divorce rate was a western rather than a frontier phenomenon. Although it was reasonable to expect the divorce rate to stabilize as western areas became more settled, Wright noted “no such tendency” was “apparent in the figures for divorce, and in fact an opposite tendency” appeared “to be at work.” In his view, high rates of divorce in the West seemed likely to continue.
Wright reported the “most common single ground for divorce” was desertion. During the period of the first Census Bureau study, 1867-86, desertion was higher nationwide than in the western division, but during the period of the second study, 1887-1906, the western desertion rate exceeded the national average.
The rise in desertion cases in the western division may have been caused by a shift in population. Between 1867 and 1886, abandoned spouses in eastern and central states obtained divorces after their spouses went westward. In 1840, for example, Anna Tucker Morrison of Mobile, Alabama, left her husband and relocated in Jacksonville, Illinois. He later obtained a divorce in Alabama on the ground of her desertion. After 1887, however, far more people, and far more potential deserters, lived in western states and territories. Many abandoned spouses were westerners and obtained divorces in western jurisdictions. One such case was deserted Oklahoma Territory husband who sought a divorce on the ground of his wife’s prolonged absence, explaining that she had “gone over-land in a wagon west to some Western state.”
A sizable number of western settlers obtained divorces because their spouses refused to migrate with them. A wife who remained in a couple’s former home was considered a deserter in jurisdictions whose laws stated that a husband’s domicile constituted the family domicile. A typical case was that of Berne Ball. In 1895, he divorced his wife of twenty-eight years on the ground of desertion after she refused to migrate from New York City to Logan County, Oklahoma.
Desertions that never reached divorce courts also appear to have been rampant throughout the West. But, because no one was counting, it is impossible to measure the extent or duration of desertion.
The growing use of cruelty as a ground for divorce may have resulted, at least in part, from the inclination of legislators to extend its scope. Before the Civil War, many northeastern and southern lawmakers expanded the definition of cruelty to include verbal abuse. During the latter part of the nineteenth century, western lawmakers also added verbal abuse to cruelty provisions. In 1877, for example, legislators in Dakota Territory broadened the ground of cruelty to include “mental suffering.” In 1890, Oklahoma territorial legislators did so as well.
Like women petitioners, men who accused their mates of cruelty cited both physical and verbal mistreatment. In 1895, J. Dayton Thorpe testified before an Oklahoma territorial court that his wife, Abbie, struck and beat him over one hundred times, threw scissors at him, and aimed a revolver at him which she repeatedly snapped to frighten him. He added that she regularly called him a “damned old fool” and a “damn son-of-a-bitch,” and told him to “go to hell” on several occasions when he asked her “civil questions.” According to him, Abbie finally abandoned him and their daughter, saying that “she did not want the child that it looked too much like its father, she had no use for it.” The paperwork ended before a divorce was granted, but it is unclear whether Thorpe dropped his suit or the case was dismissed after Abbie counter charged him with paying “improper attentions” to a hired woman and squandering the $3000 she brought to the marriage.
These divorcing women received alimony more frequently than women in northeastern and southern states. Most women who requested alimony were plaintiffs rather than defendants, for it was widely believed that a guilty wife forfeited her claim to a husband’s earnings if her misbehavior brought the marriage to an end.
Clear regional differences existed in the application of this principle. Pennsylvania judges ordered alimony in 0.4 percent of divorce cases, Alabama courts in 1.9 percent of cases, and Massachusetts judges in 6.1 percent of cases. But Wisconsin judges ordered alimony in 34.3 percent of cases, and Utah judges did so in 32.1 percent of cases.
Even when a man initiated the divorce and proved his wife guilty, judges sometimes awarded alimony to the female defendants. Generally, alimony awards were insufficient to women’s needs, especially women who received custody of children. Presumably women who had worked during their marriages would continue to do so after they divorced. Western divorce-seeking women also had a slightly better chance of getting child custody than did women in southern and northeastern states. Between 1887 and 1906, Census Bureau figures show that women received custody at a three-to-one ratio to men. In western states, women received custody at a noticeably higher ratio, especially in California, Colorado, Idaho, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, Ohio, Utah, Washington, and Wisconsin.
When women were denied custody, public sentiment was often on their side. In 1906, for example, Evelyn Blakeney kidnapped her seven-year-old daughter, locked herself and her daughter in a lavatory on an eastbound Rock Island train, and fired a bullet through the door when the sheriff tried to break in. After her arrest, a scandalous hearing ensued, in part because her former husband was a well- known attorney who was a candidate for delegate to the Oklahoma Constitutional Convention. Throughout, she was supported by a condolent crowd and sympathetic newspaper coverage.
Obviously, western divorce was far from a nirvana for women. Alimony awards were often small, one-time sums, and child custody decisions were erratic. Consequently, many women remained in difficult marriages because they were unable to support themselves and feared losing their children. One especially touching case was that of Lena Tow, who left her husband and took their three small children to Montana. After her borrowed funds ran out and she failed to find a job, she dejectedly returned to her husband in Norway, Iowa. A despairing Kansas woman took another tack; she simply waited for her verbally abusive, alcoholic husband to die.
Yet another national trend found in the western states and territories was the spread of divorce–meaning decrees granted by white legislatures and courts–to virtually all groups of people.
The Divorce Mill Panic
By the late nineteenth century, many Americans were disquieted by divorce in general and western divorce in particular. In their eyes, it seemed the West was rapidly leading the nation into moral and social decline. Their fears were reinforced by frequent reports of outrageous western divorce trials and of free-wheeling divorce mills that granted quick divorces to migratory divorce-seekers from stricter jurisdictions.
Divorce mills alarmed many Americans. Some people recognized the injustices that could occur in quick and easy divorces granted to out-of-state divorce-seekers. Others were embarrassed because their home states and territories were widely censured for their permissive divorce laws and procedures. And others reacted to divorce mills with consternation because they saw them as harbingers of greater evils: the spread of immorality, a breakdown in family life, and the fall of American society.
During the latter part of the nineteenth century, divorce mills fueled the divorce debate and fostered a widespread demand for change. In 1885, Samuel W. Dike, secretary of the National Divorce Reform League, pointed out that divergent divorce laws made divorce mills and migratory divorce possible. “The divorce broker,” he wrote, “sits in his office, and from the compilations prepared for his use, assigns his applications to one State or another as may best suit each case.” Consequences of divorce mills, whether real or assumed, primed many people to respond with indignation to the divorce mill scenario.
Certainly, during the closing decades of the nineteenth century, the rapid growth of divorce stunned many people: one of fourteen to sixteen marriages ended in divorce in the United States during the 1880s. In addition, divergent divorce laws caused confusion and sometimes corruption as well. In 1888, a New York attorney compiled a chart showing that all states and territories, except South Carolina, allowed divorce. Of the forty-seven states and territories surveyed, forty allowed the inclusive, flexible ground of cruelty. Numerous other grounds were available, and even anti-divorce South Carolina provided several grounds for annulment.
Western divorce mills seemed to be the height of laxity and permissiveness: the ultimate inducement to divorce-seekers to flee strict laws in their home states and seek a divorce in more lenient jurisdictions. Consequently, divorce mills elicited impassioned criticism and indignant responses.
During mid-century, Utah was branded a divorce mill as a result of Mormon policies concerning marriage and divorce. The Church of Jesus Christ of Latter-day Saints was founded by Joseph Smith in Fayette, New York, in 1830, but its members, commonly known as Mormons, fled persecution by moving to Ohio, Missouri, and Illinois. It was at Nauvoo, Illinois, on July 12, 1843, that Smith received a revelation saying that Mormons must practice polygamy–meaning that one husband wed several wives. This innovation drew enormous enmity from outsiders; in 1844, an anti-Mormon mob lynched Joseph Smith.
After this calamity, thousands of Mormons trekked to a desert in Utah that lay outside the boundaries of the United States. They hoped to live in peace, free from persecution and regulation by laws stipulating that marriages be monogamous. Under the leadership of Brigham Young, Mormons established Salt Lake City in 1847 and the state of Deseret in 1849. In 1850, the United States Congress recognized Deseret as the Territory of Utah, which brought Mormons back within the jurisdiction of the United States. Brigham Young served as governor of the new territory until 1857, when conflicts with the United States government, largely over polygamy, ended his tenure. Although the U. S. Congress enacted anti-polygamy statutes in 1862, 1882, and 1884, church officials refused until 1890 to abandon the practice.
During these years, many Americans harshly criticized Mormon practices, for they saw polygamy as a threat to long-held and widely cherished conceptions of marriage. In 1850, John Gunnison, an army officer stationed in Salt Lake City, wrote his wife that “some things happen in this polygamy loving community which would astonish the people in the States.” He added that it was easy to see “the influence of polygamy in degrading the female sex.” Some years later, another anti-polygamist, Philip Van Zile, thought about running for Congress so he could “do this country good” by eradicating “that relic of barbarism from its fair name.”
In addition to polygamy, the divorce practices of the Latter-day Saints shocked Gentiles, as Mormons called non-Mormons. Beginning in 1847, Mormon church leaders regularly granted divorces. Because they lacked the legal power to terminate marriages, they claimed they limited themselves to divorcing polygamous couples whose marriages fell within the jurisdiction of the church. Brigham Young reportedly granted over 1600 divorces during his presidency of the church between 1847 and 1876. Although Young theoretically opposed divorce because it contradicted the Mormon belief in eternal marriage, he was willing to terminate contentious and other unworkable marriages. On one day, he relieved George D. Grant of three wives and a few weeks later, parted him from a fourth.
Young personally lacked sympathy for men such as Grant: “it is not right for men to divorce their wives the way they do,” he stated in 1858. He had slightly more compassion for women. Although he often counseled a distraught wife to stay with her husband as long “as she could bear with him,” he instructed her to seek a divorce if life became “too burdensome.” In 1861, Young instructed husbands to release discontent wives.
As news of Mormon church divorces reached the Gentile world, public outrage against Mormons flared. After 1852, when the first Utah territorial legislature adopted a statute that permitted probate courts to grant divorces, many people became highly critical of lenient civil divorces as well.
The 1852 Utah Territory statute was objectionable because in addition to listing the usual grounds of impotence, adultery, wilful desertion for one year, habitual drunkenness, conviction for a felony, inhuman treatment, it included an omnibus clause. According to this clause, judges could grant divorces “when it shall be made to appear to the satisfaction and conviction of the court that the parties cannot live in peace and union together and that their welfare requires a separation.” In addition, the 1852 statute contained a loose residency requirement: a court need only be satisfied that a petitioner was “a resident of the Territory, or wishes to become one.”
As a result of the 1852 statute, civil divorces were easy to obtain in Utah Territory; a couple could even receive a divorce on the same day they applied for it. Unlike most other jurisdictions, Utah judges accepted collusion–an agreement to divorce between husband and wife. A married couple could appear in court, testify that they agreed to divorce, and receive a decree. Records of the Washington County probate court between 1856 and 1867 contain several such cases. On February 12, 1856, John and Sarah Wardall petitioned for divorce and requested equal division of their children and property. The judge agreed: John received custody of the two oldest boys and Sarah got custody of their daughter and youngest boy. The Wardalls also amica bly split two beds, four pillows, two bolsters, two blankets, and other household equipment down-the-middle. What could have been a difficult divorce turned out to be an administrative matter completed in a few minutes.
In an unusual case of mutual agreement, a woman’s father appeared before a Washington County judge. He testified that his daughter and her husband had asked him to apply for a divorce on their behalves. The judge, who knew the couple, stated that husband and wife wanted to divorce so that they could “marry whomsoever they will or can.” Because he believed that mutual agreement resulted “in the most good to both Parties,” he granted the divorce. It became final four days later when the couple submitted a property settlement.
When Jacob Smith Boreman, a non-Mormon from Virginia, became United States district court judge in the Salt Lake City region in 1872, he was shocked by Utah divorce laws and procedures. Boreman was especially surprised that judges accepted collusion and that divorce-seekers could file petitions, enter proof of grounds, and receive divorce decrees “all on the same day.” Boreman remarked that such practices “made it no difficult matter to secure a divorce in a probate court,” especially when most judges “had no legal training, but on the contrary were densely ignorant of the rules of law.”
Boreman himself heard a portion of one of the most dramatic divorce cases in Mormon history. In 1873, Ann Eliza Webb Young brought suit against her husband, Brigham Young. Young seemed willing to divorce Ann Eliza, but unwilling to pay the requested alimony: $20,000 costs plus $200,000 to support Ann Eliza and her children. Young, who had once offered to divorce any wife who wished to leave him, fought Eliza’s petition by arguing that their marriage was illegal because it was polygamous, thus unrecognized by United States law. According to Boreman, Young believed that if he won, he would be free from alimony; if he lost, polygamous marriages would have garnered legal recognition, for if a judge gave Ann Eliza a divorce he would have also inadvertently declared the Young’s polygamous marriage valid.
After an 1874 federal law moved Utah divorce cases from probate to district courts, Boreman became the presiding judge in the case of Young v. Young. Boreman ordered Brigham Young to pay temporary alimony to Ann Eliza, but he had to imprison Young to make him pay. The suit was dismissed in 1877 by another district court judge who refused to recognize Brigham Young’s polygamous marriage to Ann Eliza. Consequently, Ann Eliza Young failed to get a divorce decree and alimony, while Brigham Young failed to get recognition of polygamous marriages.
Despite its lenient divorce laws, it is unclear whether Utah was a divorce mill. Between 1867 and 1886, Utah courts granted 4,078 divorces. Of these, 1,267 couples had married in Utah. It is impossible to know how many of the remaining 2,811 cases involved migratory divorce-seekers or those who were converts anxious to join the Latter-day Saints after they freed themselves from unwilling mates. High migration rates into Utah during these years, however, suggest that most divorces were probably obtained by would-be converts rather than migratory divorce-seekers.
The number of divorces granted to migratory divorce-seekers by western divorce mills was almost certainly exaggerated by contemporary observers. Still, thousands of Americans reacted with alarm to the divorce mills that seemed to litter western areas of the United States during the last half of the nineteenth century. How could state governments restrict and control divorce when western divorce mills tempted divorce-seekers to escape restrictive laws and obtain divorces in more permissive jurisdictions?
The divorce issue was already volatile during the mid-nineteenth century, but the divorce mill panic greatly exacerbated that volatility. In addition, it convinced some people that divorce should be reexamined and cut back, and that “the practice of permitting residence in another state for the purpose of securing a divorce should be abolished.”
During the late nineteenth century, many Americans felt the spiraling divorce rate and the rise of divorce mills in western states and territories indicated it was time to re-evaluate divorce in the United States. They believed these pheonomenon were evidence that such long-held American values as individualism, freedom from tyranny, and a search for personal happiness had flourished in the American West–and had gotten out of hand. Clearly, the time was right for a national call for revision in divorce laws and procedures; the stage was set for the national uniform divorce law movement.
The seeds of the uniform national divorce law reform movement were planted in 1881, when the New England Divorce Reform League organized under the leadership of Theodore Woolsey, attorney, Doctor of Divinity, and retired president of Yale University. The divorce controversy reached a new peak in public visibility when the government’s second statistical study was released in 1908. This report on marriage and divorce between 1887 and 1906 described a far more comprehensive study of the topic than the earlier surveys. It contained statistics from 2,797 counties. Only six counties were omitted; for example, San Francisco County, California, was left out because an earthquake and fire had destroyed public records on April 18, 1906. This study asked for more information than the first, including data regarding alimony and number of children involved in divorces. In addition, it reflected a growing concern of the day, alcoholism, by compiling statistics of cases in which intemperance was a cause of divorce. Finally, it included a thorough digest of statutes concerning marriage and divorce in states, territories, and other countries.
The reawakened interest in national uniform divorce law continued for several years. Despite this brief regeneration, the uniform divorce law movement gradually lost momentum. It was increasingly apparent that states and territories could not, or would not, agree on divorce provisions. Around 1910, many supporters of uniform divorce law began to recognize the odds against their cause. The divorce rate was rising, divorce was gaining acceptance, and the National League for the Protection of the Family was waning in membership and visibility. It no longer provided impetus for the uniform law movement.
Still, some tenacious people clung to the idea of uniform divorce law. To them, the failure of states and territories to agree on this matter demonstrated that the federal government would have to mandate such laws. If a constitutional amendment was necessary, then they would campaign for such an amendment. President Roosevelt’s annual message of 1906 had paved the way. Arguing that “the home life of the average citizen” was imperiled by the scandals and abuses resulting from wide variations in divorce laws, Roosevelt suggested “the whole question of marriage and divorce should be relegated to the authority of the National Congress.”
Boards of Episcopal, Methodist, and Roman Catholic clergy, several members of the U.S. Congress, the General Federation of Women’s Clubs, and the California Commission on Marriage and Divorce also supported the idea of a constitutional amendment. These uniform law proponents and their successors continued to unsuccessfully push the idea of a constitutional amendment until 1947. Specifically, the leaders of the uniform law movement committed an error when they neglected to include more women in policy-level conferences. This inattention to women, especially feminists, turned a visible, vocal group against their cause. As early as 1890, in the pages of the widely read North American Review, Mary Livermore attacked divorce laws made by men to serve the interests of men. She demanded that women be included in policy deliberations.
The leaders of the uniform divorce law campaign also failed to construct a broad platform that would attract people who advocated their own solutions. Livermore, for example, insisted that “legal equality” between mates was the only solution to growing “restlessness and unhappiness in married life.” And an outspoken woman essayist, Marguerite Wilkinson, argued that only education could cure the “divorce evil.” The “right education” would help people develop informed minds and strong characters, crucial qualities in marriage partners. Wilkinson also believed people must be taught about sex and love before marrying rather than being “childishly ashamed” to talk about such matters. Uniform divorce law proposals were narrow in another way: they failed to raise such crucial issues as alimony and child custody and focused on reducing the divorce rate and destroying western divorce mills. In so doing, they failed to attract the support of people whose major concerns about divorce were alimony, child custody, and easing the burdens on divorcing spouses and their children. Uniform divorce advocates seemed to overlook the desirability of revising laws for the benefit of divorcing Americans.
External forces also impeded the success of the uniform divorce law campaign. One influential force was social scientists’ views of divorce, views that opposed the idea of uniform divorce law at almost every turn. The other was a rising divorce rate; even as some Americans harangued against divorce, other Americans increasingly embraced it. During the closing decades of the nineteenth century and the opening decade of the twentieth, social scientists tended to argue that divorce was a positive institution. Many believed that it especially benefited modern society by eliminating dysfunctional marriages.
The rising divorce rate was the second external factor that defeated the national uniform divorce law movement. Many Americans began to accept the ubiquity of divorce in American society; even as uniform divorce law advocates called for a reduction in divorces, increasing numbers of American divorced. Because thousands of people each year rejected the argument that marriage was a sacrament and a lifetime agreement, and discounted warnings regarding the decline of American society and their children’s futures, the divorce rate continued its upward spiral in the United States.
As the divorce rate rose in the United States, self-help authors increasingly tried to assist their readers in achieving satisfactory marriages rather than resorting to divorce. Although it is impossible to know how many people bought and read advice manuals, such books appeared on the market with regularity. This suggests that self-help books had a sizable audience, for publishers surely would have abandoned the genre if it failed to sell.
Self-help authors tried to combat the rising divorce rate in their own way, by offering practical counsel on how to avoid divorce. They attempted to strengthen marriages and avert people from the divorce courts by suggesting ways of choosing a good marriage partner and achieving serenity and happiness in marriage. Each of these writers tried to stem the tide of divorce by suggesting ways that marriage could be improved. Their advice focused on strengthening marriage rather than on assisting divorce-seekers. Few writers addressed such matters as locating an attorney, laws of various jurisdictions, child custody, property settlements, alimony, and general etiquette of divorce. One of the few practical guides to appear was How to Get a Divorce, published in 1859 in New York City. Written by an attorney, this small pamphlet contained a compilation of each state’s divorce laws, but neglected to give step-by-step advice.
During the late nineteenth and early twentieth century, many Americans clung to traditional views of marriage and divorce. They failed to realize that powerful forces, including industrialization, urbanization, changing gender roles, and rising expectations of marriage, propelled people toward divorce. Instead, they believed that strict divorce statutes could keep people in their marriages, reduce the divorce rate, and eliminate western divorce mills.
Other Americans, however, acknowledged divorce as a reality. Increasingly, advocates of divorce argued that divorce was a citizen’s right, and that it was beneficial to American society because it eliminated dysfunctional marriages. Although “no thinking person” would argue that divorces “be granted people who have simply tired of the marriage yoke,” certainly divorces for “extreme cruelty, drunkenness and certain forms of crime” were necessary. Should divorce disappear, “women would be the chief sufferers, for they would be compelled to bow their necks to the yoke.” Rather than escaping unbearable marriages, aggrieved wives would have to endure–to be “a bond slave as abject as she was in the days of the savagery of the race.”
On May 18, 1913, Sara Bard Field boarded a ship in Portland, Oregon. With her sister Mary and her four-year-old daughter Kay, Field sailed to San Francisco where she spent $62.70 on three train tickets to Goldfield, Nevada. During the train’s Sacramento stop, she mailed a letter to her husband telling him of her plans. When the trio arrived in Goldfield, they discovered what Field described as a “typical mining town,” but to their amazement and delight, Goldfield’s hotel boasted running water, bathtubs, electricity, and “excellent food.” After settling into the hotel, Field met with an attorney to initiate a divorce suit against her husband, Albert Ehrgott.
Sara Field was typical of a growing number of Americans who rejected the idea of marriage as a sacrament and for life. Field was willing to put her marriage asunder and set herself and her children adrift because her watchword was love. Although her husband had not committed a marital crime–adultery, desertion, non-support, or cruelty–Field no longer loved him. Moreover, she loved another man. Thus, she was willing to thwart her husband’s opposition to a divorce by seeking a migratory decree in Nevada.
Many Americans still opposed this kind of thinking. As a result, the great American divorce debate continued. Most of its themes were familiar ones. Was marriage a lifetime undertaking or was it a dissolvable contract? Should divorces be difficult or easy to obtain? Could uniform national divorce laws reduce the rising divorce rate? What actions would curb migratory divorces? What factors caused the rising divorce rate?
Certainly, a new morality seemed to be developing in the United States. As the first decade of the twentieth century came to a close, divorce appeared to be everywhere; it also seemed to have garnered widespread support.
The new morality that affected a wide spectrum of Americans was accompanied by a rising divorce rate. Regardless of how the divorce rate was computed, its overall pattern was the same: upwards. Whether the number of divorces between 1910 and the mid-1940s was compared with total population, married population, or marriages in a given year, the resulting ratio showed an ascending curve that surpassed the divorce rate in all other nations. The divorce rate was abnormally high after World War I, when hasty wartime marriages collapsed and others succumbed to war-related stresses, but it leveled off somewhat during the 1930s Depression when limited resources mitigated against divorce. In 1928, a year approximately midway between 1910 and 1945, slightly more than one of six marriages ended in divorce.
Most other trends held steady as well. Urban divorce rates continued to out-distance rural rates. The West’s divorce rate continued to exceed that of other regions. Women continued to obtain more divorces than men; in 1928, women received 71 percent of all divorces granted. And in that year, 47 percent of divorces were granted on the increasingly popular ground of cruelty, a charge women continued to use more than men.
Proponents of uniform divorce law kept the issue of migratory divorce in the public eye throughout the pre-World War II era. They discounted statistics indicating that only 3 to 20 percent of divorces were obtained in states other than the state of marriage and that only a few of these involved spouses who had purposely migrated to obtain a divorce. Instead, they talked in terms of an “exodus” of divorce-seekers from New York and an “interstate migration” of British Columbian divorce-seekers into Washington state.
Of course, Nevada was the most highly publicized destination for divorce-seekers. The state, and especially the city of Reno, soon gained a reputation as a jurisdiction that combined lax laws, leisure pursuits, and a pleasant climate. Reno began its rise to infamy as a divorce mill largely because of Nevada’s six-month residency requirement for citizenship, voting, and divorce, a provision intended to accommodate the needs of a highly mobile population of miners and entrepreneurs. In 1900, a well-known Englishman, Lord Russell, divorced his wife in Reno, married another woman, and was subsequently sued for adultery by his first wife. The resulting scandal drew widespread attention to Nevada’s lenient divorce laws.
Other well-known people soon took advantage of Nevada’s six month residency requirement and permissive grounds for divorce, including a broad, catch-all cruelty provision. In 1905, the ease of Reno divorce, at least for those who could afford to travel to Nevada and spend six months there, was brought to public attention by Laura B. Corey of Pittsburgh. Corey claimed that her wealthy husband was involved with a dancer. The resulting publicity catapulted Reno into the national spotlight.
Collusion subverted the adversarial nature of divorce actions in which an innocent spouse sued a guilty spouse. Instead, couples who agreed between themselves to “sue” for divorce, usually also decided whether it would be more convenient and seemly if the wife or the husband was the plaintiff. They might also take into account the costs and amount of court time involved if one or the other initiated the suit. Because women received more divorces than men, it is reasonable to assume that in cases of collusion, couples agreed that wives should be the plaintiff more often than husbands. During the 1930s, a Richmond, Virginia, man who was considering divorce said as much: “Custom demanded, to a large extent, that the husband allow the wife to make the first move.”
The contention that many couples agreed which party would be the plaintiff is borne out by a sample of forty-five midwestern women and men who obtained divorces before 1945. Thirty-seven interviewees revealed that they and their spouses had agreed that the wife should be the plaintiff. They believed that if she accused him of fault instead of him accusing her, she would bear less stigma in the eyes of their children whom she would be raising. They also thought that if a wile appeared as the wronged party, this would encourage a court to accept her property and child custody demands–arrangements that the couple had already agreed upon. Eight other couples chose the husband as plaintiff, but none of these cases involved children so neither stigma nor custody settlements was an issue. Five of these couples decided that the husband should act as plaintiff because the wives feared dealing with attorneys and appearing in court. One husband was willing to take care of all legal matters and hire an attorney friend at a special rate. Only years later did his former wife accidentally learn that he had moved out of town without paying his “friend.”
Certainly, many migratory divorces had a collusive element. When spouses agreed that one of them would go to a lenient jurisdiction to obtain a divorce, they were practicing collusion. And when a spouse promised to refrain from bringing a counteraction or attempting to revise the terms of a migratory divorce, she or he was being collusive.
The state of New York provided the setting for another type of collusion. Because New York specified only adultery as a ground for divorce, many people created sham adultery cases. Companies sprang up that supplied a hotel room, a phony partner, a private detective, and a photographer. Once the incriminating photographs were taken, the case went to court where the partner and detective testified to a husband’s or wife’s adultery. During the early 1920s, one entrepreneur used unemployed actors in producing fabricated court evidence.
In other states, collusion frequently went hand-in-hand with the use of moderate grounds. Few wives and husbands who agreed to divorce wanted to stain their spouses’ reputations with charges of adultery, alcoholism, or impotency. Even if accurate, such harsh grounds could easily be replaced by the less damaging grounds of cruelty, neglect of duty, or incompatibility when they were available. Of the forty-five collusive couples mentioned above, forty-two chose such grounds as cruelty, neglect of duty, or incompatibility, although in at least twenty-nine of these cases, adultery and alcoholism had destroyed their marriages.
In flaunting the adversary system, collusive couples practiced a form of what was later called no-fault divorce. Evidently, the time was not yet ripe for the acceptance of no-fault divorce; few people even raised the possibility. Instead, collusion remained in force, thus establishing in practice what later no-fault legislation would recognize by statute.
The Search for Causal Factors of Divorce
As the divorce rate rose and problems concerning full faith and credit as well as collusion captured the public’s attention, a growing number of Americans felt compelled to identify factors causing divorce. If they understood causes of divorce, they reasoned, they might be able to curb divorce, or at least deal effectively with associated problems. And if they were aware of causal factors, policy-makers and legislators could devise rational solutions for such problems as the rising divorce rate, migratory divorce, and collusion.
The move to detect causes of divorce was hardly new, but it intensified as the divorce rate climbed. Commentators ranging from sociologists to novelists to judges posited their pet theories regarding divorce. Like earlier commentators, several writers linked American individualism and democratic ideals to the escalating divorce rate. In 1915, one advocate of easy divorce declared that the growth of divorce in the United States signaled Americans’ “increasing individualism” and their “demand for a larger degree of freedom and happiness.
Between 1910 and the mid-1940s, a few divorce-related issues had been resolved. The Supreme Court had hammered out a principle regarding migratory divorce. And the uniform divorce law movement had neared its end. But many problems continued to exist. The growth of collusion was subverting the word and intention of divorce statutes. Causes of divorces were still difficult to determine. And such issues as alimony and child custody continued to receive little public airing. Clearly, post-1945America would have no lack of causes to debate and pursue. By the mid- 1940s, then, divorce was a permanent feature of American life. It was everywhere; it had even become a staple theme of popular literature in the United States.
When World World II ended in 1945, divorce was becoming increasingly common in the United States. With spouses frequently coming and going, the institution of marriage was beginning to somewhat resemble a revolving door. But divorce was not only ubiquitous; it was widely accepted as a traditional–or customary–way of resolving marital disharmony.
As the century progressed, the spread of divorce affected American law and society on many levels. By 1970, every state in the union permitted divorce.
As the divorce rate spiraled upward, more people became concerned about the effects of the divorce process on divorcing spouses and their children. Early in the twentieth century, several Americans began to support a radical plan to soften the process by replacing adversarial divorce with divorce by mutual consent. As early as 1915, one commentator prophesied that divorce by mutual consent was “likely to form one of the provisions of future divorce law.” In 1923, novelist and essayist Katharine Fullerton Gerould had argued that if laws made it possible “to marry at sight,” they ought to make it possible “to divorce on demand.” And in 1927, Judge Ben B. Lindsey of Denver suggested that couples undertake trial marriages that could be terminated by mutual agreement.
During the mid- 1940s, Americans continued to discuss the possibility of replacing adversarial divorce with a non-punitive procedure.
In 1947, the New York Public Affairs Committee published a pamphlet, Broken Homes, criticizing adversarial divorce. It maintained that because most husbands and wives were driven apart by “internal tensions” in the marriage itself, both parties were “at fault.” Two years later a legal authority defined divorce as the termination of an unworkable relationship, a termination that should consider the best interests of divorcing spouses and their children rather than punishing the “guilty” party.
Other writers explored the form that mutual consent–essentially no-fault–divorce might take. In 1949, one legal specialist supported the American Bar Association’s “contract theory” of divorce. A dissatisfied couple would present data about themselves and their children to a judge. During the next six months, the court would investigate the case, while the couple considered reconciliation. If the information submitted proved accurate and the couple rejected reconciliation, the judge would grant a divorce. This process was intended to bring an end to court battles “about ’causes’,” “substitute honesty for hypocrisy,” and result in humane, enforceable divorce decrees.
In the meantime, a number of states by legislative enactment had begun to de-emphasize adversarial divorce procedures. In several states, statutes permitted couples to divorce after they had lived apart for a specified time; no wrongdoing need have occurred. By the mid- 1960s, eighteen states, Puerto Rico, and the District of Columbia sanctioned living apart as a ground for divorce.
Another attempt to offset the harsh effects of adversary divorce was the establishment of family courts; only judges trained in family law would rule on such issues as alimony and child custody. It was hoped that family courts would establish equitable financial settlements and prevent one parent from denying child-visitation rights to the other. After the first family court was established in Cincinnati, in 1941, the concept spread to Milwaukee, St. Louis, Omaha, Des Moines, Portland, Oregon, and Washington, D.C. In 1949, the states of Texas and Washington initiated similar reforms. The Los Angeles Children’s Court of Conciliation, which tried to reconcile divorcing parents, was perhaps the most well-known of these schemes. By 1959, the Los Angeles Children’s Court reportedly reconciled 43 percent of the alienated couples who entered counseling.
Still, many people continued to advocate the elimination of adversary divorce. In 1966, historian Christopher Lasch argued that lenient, non-punitive divorce would protect the family rather than threaten its well-being. If mates could easily end destructive marriages, society would be left with “mature marriages” rather than non-functional ones. Two years later, anthropologist Margaret Mead advised Americans to view divorce as the termination, without re crimination, of a dead marriage. Divorce was, in her view, an opportunity for a divorced person to form “a better marriage, a true marriage” in the future.
During the late 1960s, such legal specialists as New York University law professor Henry H. Foster, Jr., and attorney Doris Jonas Freed recommended the adoption of mutual consent, or no-fault, divorce. Foster and Freed argued that divorce law must strike a balance between public concern for the family and the need to end an individual marriage. Foster explained that 70 percent of divorce petitioners tried to minimize the adversarial nature of divorce proceedings through collusion or by charging cruelty rather than utilizing harsher grounds, especially adultery. Foster predicted that “substantial reforms” were in the offing and hoped that they would “sever the bonds of acrimony” and assist divorcing mates and their children in getting on with their lives.
California was first to act on the idea of no-fault divorce. After studying various suggestions and the 1966 Report of the Governor’s Commission on the Family, California legislators began to draft nofault divorce statutes in 1967. In 1969, the legislature approved the Family Law Act. Governor Ronald Reagan signed it into law on September 5, 1969. The bill, which went into effect on January 1, 1970, replaced California’s seven grounds for divorce with two no-fault provisions: irremediable breakdown of a marriage and incurable insanity. Petitioners had only to reside in California for six months before applying for a divorce. Judges could award alimony based on a spouse’s need for support and the other spouse’s ability to pay; they were to divide a couple’s property equally. Judges were also to make child custody decisions. And the final decree was to be known as a dissolution, rather than a divorce. Legislators hoped that these provisions would end adversarial divorce and eliminate the need for one petitioner to present evidence blackening the character of the other.
California’s no-fault divorce statute marked the beginning of widespread changes in American divorce law. In 1971, Iowa was the first state to follow California in adopting no-fault divorce. By August 1977, only three states retained the adversary system of divorce: Illinois, Pennsylvania, and South Dakota. Fifteen states–Arizona, California, Colorado, Delaware, Florida, Iowa, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, Oregon, Washington, and Wisconsin–stipulated irretrievable breakdown of a marriage as the sole ground for divorce, while sixteen others–Alaska, Alabama, Connecticut, Georgia, Hawaii, Idaho, Indiana, Maine, Massachusetts, Mississippi, New Hampshire, North Dakota, Ohio, Texas, Tennessee, and Rhode Island–had added irretrievable breakdown to existing “fault” grounds. Today you can apply for divorce on no fault grounds in Utah. Speak to an experienced Bountiful Utah divorce lawyer to know how you can seek a divorce in Utah on no fault grounds.
No-fault divorce did bring about a number of significant alterations in American divorce. It changed the concept of divorce from a punishment of an offending spouse to a “remedy for situations which are unavoidable and unendurable.” And, although no-fault divorce law attempted to preserve marriages when possible, it provided relief to dissatisfied spouses on non-judgmental grounds.
It also made collusion between divorcing spouses unnecessary because one no longer “sued” the other for divorce. As a result, the number of male petitioners increased considerably. No-fault divorce also led to less costly divorce because a no-fault action seldom involved high court, attorney, and other costs. A 1977 U.S. Supreme Court ruling in Bates v. State Bar of Arizona intensified this effect by permitting attorneys to advertise their services. Soon, American lawyers advertised easy, inexpensive divorces more frequently than any other legal service.
Parents Versus Third Parties: Grandparent Visitation
Parents have rights over their children; and the state has a residual role. Are there others who have claims? Sometimes—particularly after bitter divorces or the death of one parent—grandparents feel themselves cut off from their grandchildren. The extended family may be decaying; but grandparents still play a huge role in the lives of millions of children.
All fifty states today have statutes granting grandparents, and sometimes other third parties, the right to petition for visitation rights—even when parents object. These statutes pit parental rights against the grief of grandparents who lose contact with their grandchildren. These statutes vary in substance and procedure, but they all give a court power to override a parent’s decision to cut off contacts with relatives. Many of the laws require divorce or the death of a parent to trigger visitation rights for third parties; children of fractured families, it was feared, were losing touch with extended families, particularly the parents of the non-custodial parent.
Tommie and Brad Troxel never married, but they lived together and had two daughters together. (Tommie had eight children in all.)81 After the couple broke up in 1991, Brad moved in with his parents and often brought the girls to their house for his visitation weekends. When Brad committed suicide in 1993, his parents wanted to maintain the same type of schedule; but their mother agreed to no more than one visit per month. The Washington State statute permitted “any person” to petition for visitation rights, and authorized courts to grant these requests if this was shown to be in the “best interests of the child.” The trial court granted substantial visitation rights to the grandparents— more or less what a divorced dad might expect.
Tommie appealed; and in Troxel v. Granville (2000), a somewhat surprising decision, the United States Supreme Court held that Washington’s visitation statute was unconstitutional, at least as applied to Tommie. Under the Fourteenth Amendment— the Due Process Clause—the parents’ right to “liberty” included rights over the care, control, and education of their children. Troxel expanded this right. The Washington statute, according to a plurality of the Court, was “breathtakingly broad.” A third-party visitation statute must, at a minimum, give “special weight” to a parent’s decision not to allow visitation. The Washington statute relied on that old standard, the “best interests of the child.” This appeared to give equal weight to the preferences of the parent and third parties. But a fit parent must be presumed to act in the best interests of the child; and that includes the decision to block visits by grandparents. Before a court can order visitation rights, there must be at least some evidence to overcome this presumption.
After Troxel, courts in many states struggled with challenges to their own statutes—did they give enough deference to parental rights? Statutes in California and Minnesota expressly built in a presumption in favor of parental decisions. New York’s visitation statute permits grandparents to petition for visitation if either parent is deceased or if “equity would see fit to intervene.” Lower courts have read this requirement as sufficiently protective of a parent’s right to refuse visitation.
Little Brittany Collier lived with her mother and her maternal grandparents, Gary and Carol Harrold, from birth to age two. Her father (who had never been married to her mother) had supervised visitation rights twice a week. Then Brittany’s mother died of cancer. Her father petitioned for and won custody of Brittany. He took her from the grandparents’ home and refused any further contact. They filed a request for visitation. Ohio law put the burden of proof on the party seeking visitation, and listed factors to be considered, including the wishes of a child’s parent. This emphasis on the parent’s rights was enough to allow the court to avoid Troxel. The Harrolds, who had a longstanding and close relationship with Brittany, won the right to visitation.
Cases like these continue to wind their way through state court systems with mixed results. The statutes, and Troxel itself, are, of course, signs of the times. There is no organized “grandparents’” lobby; but it is easy to form interest groups out of dispersed individuals with a common problem or interest. And the civil rights movements—starting with African Americans, then women, Native Americans, the elderly, the handicapped, prisoners, and all other conceivable clusters—make the idea of grandparents’ rights more tenable. As do the increasing use of courts, constitutions, and judicial review to sort out rights and conflicting interests; the growing tendency of law to treat individuals as rightsholders, rather than families; and the increase in the number of what used to be called “broken homes.” All this set the stage for a battle, in which Troxel was a kind of climax, but not a definitive resolution.
Choosing the right attorney
Divorce law is a highly specialized profession, and one attorney is not necessarily as good as another. Even if you restrict yourself to an attorney who specializes in divorce law, attorneys have different amounts of experience in complicated negotiations and in litigation. They differ in the time they have practiced in your jurisdiction and in their awareness of individual judges’ previous rulings. They differ in cost. They differ in how thoroughly they prepare cases and in how responsive they are to your phone calls and needs. Some will handle your case themselves, while others will turn it over to an associate—perhaps an inexperienced one. Some will agree to act as a coach if you decide to represent yourself, providing information and advice and reviewing agreements you have reached with your spouse.
Litigation has a number of serious financial and emotional pitfalls. Legal fees may escalate out of proportion to your assets. When you take your case to court, your life is scrutinized in public and your future is turned over to a judge who neither knows your family nor has the time to tailor a decision to your unique case. His or her ruling is determined by some combination of formulas, the opinions of experts if called in on your case, and the judge’s own leanings. Litigation is chancy and courts unpredictable. He points out that every trial lawyer has had the experience of turning down settlement offers because they were too low, only to obtain far lower settlements in court.
Mediation is an alternative to the traditional two-attorney adversarial path to divorce and is being used by increasing numbers of people. In mediation, an impartial professional helps divorcing spouses hammer out agreements that are fair, informed, workable, and acceptable to both spouses. In mediation, there is no winner and loser, as there so often is in an adversarial divorce. Mediators take a win-win approach. Some couples use mediation to negotiate all issues: parenting arrangements, support issues, and property division. Some use it only for decisions related to the children, while their attorneys handle their financial issues.
Don’t confuse mediation with arbitration. In arbitration, parties accept the decision of the arbitrator. In mediation, a settlement is completely voluntary. Mediators neither make decisions nor force a decision. If the parties do not reach a decision on one or more issues in mediation, they are free to resolve them through their attorneys or the courts. Don’t confuse mediation with counseling or therapy, either. Mediators do not help you decide whether to get divorced or help you work through your emotions and losses, as therapists do.
Mediation can be used at any time. Some couples use it before one moves out of the home, others after they have met with an attorney. Some try it as a last attempt to avoid litigation, although by this time conflict has often escalated out of control. Some couples seek family mediation after divorces are final to settle new disputes that have arisen over children. Some use it after remarriage to work out a detailed parenting agreement in which everyone’s roles and responsibilities are spelled out when one or more stepparents are involved.
Mediation is not a panacea. It is a poor choice if either party is fixated on revenge or “winning,” or if either is determined to hide assets despite agreements for full disclosure. It is not a good alternative if one party’s functioning is seriously impaired due to very low intelligence or severe psychopathology. If a spouse cannot let go of the marriage, he or she may not be willing to resolve all issues because to do so would mean the end of the marriage. And if one spouse has clearly dominated the relationship or if there has been ongoing domestic violence, it takes a very highly skilled and astute mediator to guide the couple to a fair agreement.
Successful mediation may mean you can avoid years of bitterness, hard feelings, court battles, and relitigations. It is a process far better suited to families than is the adversarial process, particularly for issues concerning children. If all issues are not resolved in mediation, you can always fall back on adversarial means to resolve them. Mediation is an option well worth considering at any time during the divorce process. Couples in mediation typically report feeling empowered to shape their own futures rather than victimized by a callous system. Mediation is less time-consuming, less costly, and less stressful than is the adversarial path to divorce, and people generally report more satisfaction with mediation and mediated agreements than they do with adversarial procedures and their resultant settlements.
The adversarial legal system can do for families in divorce what the hand grenade does for interior design. Mediation is a path to a kinder, gentler divorce. In fact, the majority of states now have mandated mediation for couples with disputes about their children. In Utah the spouses must subject themselves to mandatory divorce mediation before they can move the courts.
If divorce will be the end of the relationship, the hand grenade approach may not be so catastrophic. But in cases involving underage children, divorce is not the end of the parents’ relationship, but a milestone. Mediation gets spouses communicating in a constructive way. It demonstrates that cooperation can be more to their advantage than confrontation. It models communication and negotiation skills that can be used in the future. This is quite a contrast to the escalating bitterness and conflict that are so often by-products of adversarial divorces and that inevitably color future interactions.
Couples in mediation typically report feeling empowered to shape their own futures rather than victimized by a callous system. Mediation is less time-consuming, less costly, and less stressful than is the adversarial path to divorce, and people generally report more satisfaction with mediation and mediated agreements than they do with adversarial procedures and their resultant settlements. Studies report that people are also more willing to adhere to their mediated agreements and less likely to drag one another back to court.
In mediation, the mediator helps the parties clarify issues, individual needs, and priorities; develop and evaluate a variety of options; and hammer out agreements that are acceptable to both parties. Parties are also helped to compile information needed to make informed decisions, such as financial records, their separate living expenses, pension valuations, and property and business appraisals.
Your emotional divorce is completely separate from your legal divorce. For some it does not take place until long after the legal divorce is finalized. For some, it is an elusive goal, never reached.
Your emotional divorce is accepting the end of your marriage, recognizing both its strengths and shortcomings over the years, and acknowledging the role you played in its demise. It is letting go of the sadness, anger, and resentments and laying your past to rest. It is feeling only indifference, concern, or tenderness for your former partner rather than anger, hatred, resentment, regret, sorrow, longing, love, or dependency. It is getting on with a future of your own design.
People achieve their emotional divorce to different degrees; not everyone is a glaring failure like John or a dazzling success like Ann. Those with moderate success may still harbor strong feelings but may be able to compartmentalize them so they do not interfere with their day-to-day lives. Others may successfully co-parent their children but not without a constant struggle to avoid conflict.
For most people, disengaging from one another is an important step in completing their emotional divorce. Many people balk at the idea of disengaging, feeling that it is unnecessary. However, in the long run, relatively few people find they were correct. For most people it is a must! The following steps will help you in the disengaging process:
• If you are a departing spouse, take everything with you and change your mailing address; do not keep keys to the family home.
• Limit all contact and discussions with each other to necessary matters only, such as children, dividing belongings, and resolving financial matters.
• Formalize how you will communicate from now on; set prearranged meetings or phone calls.
• If your former partner persistently tries to make unnecessary contact, get an answering machine and screen calls.
• Send support payments through the mail.
• Do not rely on your ex-spouse for any of the functions (other than parenting) that he or she took responsibility for in the marriage (cooking, laundry, car or house repairs, bill paying, financial planning, and so forth). Falling into these familiar patterns will keep you in a state of limbo—no longer a part of your old world but unable to enter a new one.
• If you have children, establish a set schedule for them to see the departing parent. This eliminates the need for ongoing contact to arrange for exchanging the children, and it allows each of you to make plans independently. It is also good for your children.
• Respect one another’s privacy; do not ask about or offer personal information.
Disengagement does not mean you must permanently terminate your relationship with your spouse. A good relationship with your former partner can be a real asset in the future, particularly if you have children. However, to have a good relationship in the future, the spousal relationship needs to be redefined and restructured. You need to stop interacting in your old ways and find mutually acceptable new ways of relating. Because of the emotionally charged atmosphere of separation, a period of non-involvement is usually necessary before a new and different relationship can develop successfully.
If you feel the need to speak or contact your ex-spouse after a bitter divorce battle, speak to an experienced Bountiful Utah divorce attorney before you do so.
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